The innocence problem.

When I began College Judicial Consultants I wanted to offer the best services possible for students going through their judicial process while still respecting the systems and the people involved in supporting that process. In other words, I wanted to honor my former colleagues doing a very difficult and thankless job while making sure our clients avoided any and all unnecessary sanctions for what they did. This seemed like a fairly straightforward goal, but I have run into a serious problem with about half the clients I’ve had—they have been innocent.

Why is innocence a problem? It shouldn’t be, but judicial bodies are made up of human beings who enter into hearings with certain expectations. These expectations place an unacknowledged burden on respondents when the complainant is a member of the staff, faculty or students in appointed positions of authority. The only protection from this type of bias is if the judicial office(r)s are vigilant in recognizing and combatting it where it occurs.

Picture this: You are a judicial board member who hears about 2 cases a week for an entire academic year. You know there are many cases that don’t get to you that are handled by the administration, and you’re proud of the opportunity to serve your college by hearing the “more serious” cases. The day before the next hearing you get a case to review. A faculty member in an advanced particle physics class accused a student of cheating on an exam. While the faculty member did not see the student cheat, one of the answers on one question has 3 lines of a mathematical equation that are the same as the person next to him and those lines have a common mistake. In his experience and in his expert opinion, that means that someone cheated.

The professor spoke with both students and, after meeting with them, believes the student in question is the one who copied the answer and the other student was unaware of that copying. The professor also comments that during the meeting the accused student was defensive and repeatedly denied the cheating, but seemed nervous and overly agitated. As a response, the student respondent vehemently denies cheating, points out his grade in the class (a B+), states that most of the question was dissimilar, but cannot offer an explanation for why that part of the question was the same. In support of his position, the student brings in proof that he studied and the testimony of people sitting around him in the class who will testify that they did not see him cheat. The other student excused from the accusation also testifies that he did not see the respondent cheat.

In the above example I assume that the professor honestly believes that student cheated and will calmly and confidently reiterate that fact as well as his belief that such an event can only have occurred if one student copied off the other. The student, on the other hand, repeats the information in his response, is flustered, and acts very nervous throughout the hearing. Your system has a “preponderance of evidence” standard which means a student is responsible if he is “more likely than not” responsible. What do you do?

In the above example a board member would have to decide that the professor made a mistake or that the student is lying. If you believe the student isn’t lying then the professor has to be wrong, and if the professor isn’t wrong then the student had to cheat. Despite that, this doesn’t come down to a coin toss in practice, however. Board members do not operate in a vacuum, and the professor comes to the table with a respect and expertise that cannot be matched by the student. It’s human nature—when in doubt trust the expert. You should listen to me when I make suggestions on preparing for a disciplinary meeting, but my medical advice is useless.

As I’ve said before, I believe in the preponderance of evidence standard in judicial hearings. I think it is the best standard if the process is indeed to be educational because it allows a board to sanction in a way that addresses the specific needs of each student in question. However, when a vast power differential exists between the two parties, the intangibles, which oftentimes determine responsibility, will always favor the one with more power. (i.e., Social justice 101.) The power difference in these cases is exacerbated by other factors I have found common with most boards.

First, they trust the judicial office(r)s to weed out bad cases. In other words, the judicial office(r) should make sure the right parties are there, that all procedural requirements have been met, that there is a prima facie case, and that the board has complete information. While that is almost always done the very act of doing it creates an implied endorsement of the case as “valid”. While this doesn’t mean that the board will always agree and find responsibility, they board trusts that they wouldn’t hear a case if there wasn’t a chance of responsibility.

Second, they assume that accused students have more reason to lie than faculty, administration and police. I want them to believe this because it is usually true, but the problem is that the only options are not “lie” and “not lie.” There is also the possibility that the “expert” has made a mistake or has been either fooled by someone into thinking they’re innocent or misinterpreted someone’s behavior as indicating guilt. Let’s face it, people respond to different personalities differently. What’s confident to one is cocky to another. What’s nervous to one is guilty to another. When there isn’t hard evidence, much of the testimony consists of subjective (if educated) beliefs. Those beliefs need to be challenged and it is unfair to expect student board members to challenge them when those in the position to do so did not. The judicial office(r) should be the one to do so, but the power dynamic between staff and faculty often stops that from happening. As a judicial officer you want faculty to employ and trust your system, and if faculty feel they are “on trial” they will simply avoid the system. While that is a tough dilemma for the administrators involved, they must put the rights of the accused student first. Every time.

Third, their job is to support the system, the school, and the policies that govern them. This is another statement that is almost always positive in practice, but I think it needs to be approached differently. When I used to train judicial boards I spent a lot of time talking about how they could navigate the intangibles such as body language, demeanor, experience based likelihood, etc. Knowing how to do that would allow them to make tough decisions because we instinctually can recognize deceit and, with training to develop those instincts, it can be a useful tool. I would then emphasize that their job was to assume innocence of the accused student unless the complainant make a convincing case. In other words, they support they system by holding violators accountable, but also by not holding accountable those people innocent of wrongdoing.

Fourth, there is almost no discussion of the overwhelming difficulty of disproving a negative claim against you made without evidence. I would spend a lot of time in those trainings talking about how hard it was to disprove a negative accusation and would have them make accusations against the person next to them about a character issue. (e.g., “You are a terrible boyfriend.” “You don’t work hard.” “You like to lie.”) Then I would have the person disprove that statement to help them understand that accusations, even strongly believed accusations, needed substance behind them. If there is actual evidence the respondent can respond to that, but opinions and beliefs are a different story. As a judicial officer you need to be able to tell people, no matter their position, that the evidence is not enough if they cannot support their claims. I don’t mean you substitute your judgment for the board, but I mean you have to understand the psychology involved to make certain that, once you strip the complainant of the advantage of his or her authority and expertise, that the accusation must meet the burden. If all that’s left is a coin toss, it doesn’t.

Being a judicial officer is a thankless job. Most students don’t know who you are, and the ones that do likely think you’re some sinister heartless robot sitting in your office dying to punish students. Other staff and faculty, if you are lucky and they have any respect for your system, see you as an ally who is there to help them enforce rules and hold student accountable for the misconduct they commit in their areas. If they bring a case to you and the student is not found responsible or the sanction is stronger or weaker than they wanted, then you and your system are flawed.

Despite this, most of the judicial officers I have known are some of the most compassionate and empathetic people I’ve met who constantly work to improve their systems for all parties involved. Unfortunately, since starting College Judicial Consultants I have also seen many people who are at best careless with the rights of the accused and at worst actively trampling those rights. The worst part is that the system, like any other societal system, does not give an opportunity for those wronged by the system to have any vindication. While there are appeals boards, the standards for granting an appeal are rightly very high and they also have numerous assumptions going into the appeal (e.g., the evidence standard for altering decisions is usually much higher.) Even is a student is convinced and is correct that an administrator has been acting unethically, they are easily dismissed as having “sour grapes” or being “retributive.” After all, one could claim, they are a cheater and are too mature to take responsibility so how seriously can you take them?

College Judicial Consultants wants to make sure that we help students identify the situations where factors other than their actions are being considered, and give them the tools to fight those factors. In other words, we want to help them bridge the gap in power and authority inherently present in the system. I still believe that accountability is of primary importance on a college campus, but accountability quickly becomes oppressive if it supports an unfair dynamic. Judicial office(r)s are the first and best line of defense to prevent this from happening and, frankly, a lot of them need to step it up.